Tag: Government

Public officials have the same rights to freedom of speech and freedom of association that the rest of us have. The do not lose their rights simply because they win elected office. Public officials are not above the law, but they are not beneath the law, either. They have a right to maintain their private lives, including their personal social media feeds (per the relevant terms of service), and interact with people (or not) as they see fit, just like the rest of us.

At the same time, insofar as public officials act as agents of government, they assume certain legal responsibilities that the rest of us do not have. If public officials open official forums of public commentary, they may not discriminate on the basis of ideology or point of view (among other things), and they must treat everyone equally under the law. Continue reading “On the Right to Petition Public Officials on Social Media”

Donald Trump and Hillary Clinton each have their cheerleaders. Most of us, though, regard these candidates as horrid and this year’s presidential race as an “international embarrassment,” as Vincent Carroll puts it. How did we get here?

If American government was to be bound by the “chains of the Constitution,” then surely those chains have loosened if not snapped. Michael Huemer, a philosopher at the University of Colorado at Boulder, has some ideas for how to tighten those chains. He discussed these ideas July 13 at an event hosted by Liberty On the Rocks, Flatirons.

Huemer observes that structural and procedural Constitutional provisions (regarding how government functions) tend to be taken more seriously than are substantive Constitutional provisions (regarding what government may and may not do). So his ideas focus on changing government structures and procedures in the hopes of indirectly altering the substance of what government does.

He offers three main proposals. First, new legislation should require a two-thirds vote by Congress. Second, “there should be a negative legislature that has the power only of repealing laws.” Third, besides the Supreme Court, there should be a new Constitutional Court, “where the cases are decided by a jury of citizens,” that can initiate Constitutional review and that can mete out punishments to elected officials who violate the Constitution.

Generally I regard these as excellent ideas.

Huemer did an especially good job of explaining why the default should be for government to take no action—the opposite of today’s presumption. Government action, he stressed, involves coercing people. In general, he argued, it’s better to not coerce someone, even if coercion might be justified in a given case, than it is to coerce someone unjustly.

Huemer likened modern government to a Medieval doctor. Society, like the human body, is enormously complex, and making a random change to it is more likely to do harm than good. Medieval doctors were more likely to harm their patients than to help them, Huemer noted, and, similarly, government actors are more likely to do harm than good. Thus, he concluded, it’s good to move the default closer to government taking no action via the institutional changes he suggests. (Huemer offered many additional arguments to buttress his case; for these I’ll point individuals to the video of his presentation.)

I think Huemer went off track only a few times. The most important example is his treatment of the separation of powers. True, as he noted, different government institutions very often support rather than oppose each other. But that does not change the fact that the separation of powers, instituted not only in the tripartite federal government but in federal-state divisions and in representational elections, very often stops or slows the imposition of bad government policies. For example, the Supreme Court threw out much of FDR’s New Deal, and more recently it threw out censorship of political speech via the Citizens United decision.

Huemer errs in this matter largely because he assumes government entities generally seek to expand their own power. True, they often do. But very often government actors are driven by ideological convictions, not (or not only) by a lust for personal power. Because people in different government entities are motivated by ideological convictions (to a lesser or greater degree), the separation of powers works somewhat better than Huemer thinks.

Another problem with Heumer’s presentation is that his idea of a “negative legislature” needs a lot more development to be viable. It would be a straight-forward fix if it were the case that new laws always expand government powers on net, while repeals of laws always reduce them. But that’s not the case. New laws very often curtail government powers made possible by preexisting laws. For example, federal civil rights laws preempted state-level discrimination laws—and that was a pro-liberty development. In Colorado a few years back, new legislation curtailed the power of police to seize property through asset forfeiture. To make matters more complex, generally old statutory language is removed via the passage of a new bill. So it’s not clear whether a “negative legislature,” unless its scope were very clearly and appropriately defined, would on net act to expand or reduce government power.

Huemer also suggested that he supports anarchy over limited government; he did not get into that issue during his talk, so I won’t get into it here. I’ll have more to say against anarchy later.

In all, Huemer’s talk is well worth watching. It is an excellent example of how an academic can make rigorous arguments to a popular audience. Academics should interact with the thinking public, and vice versa—as such provides checks and balances within American intellectual discourse.

Yesterday I waded into the middle of the conflict between Rocky Mountain Gun Owners RMGO and the Independence Institute regarding strategy over gun magazine restrictions. (This morning Mandy Connell discussed my article on KHOW, and Dudley Brown called in to explain his position.) Related, yesterday RMGO* also tried a bizarre procedural move to force a floor vote of the bill to repeal the magazine restrictions.

The leftist ColoradoPols has a write-up about this. According to a Democratic media release it quotes, “Rep. Everett moved to amend the journal to overturn the work of the committee and show that SB15-175 passed.” That is certainly an, uh, interesting tactic. Obviously if a Democrat tried that with Republican leadership, Republicans would explode in anger. (I’ve emailed Everett about this and will update this article if he replies.)*

But, RMGO* antics aside, the episode gave me an idea: Why not send all bills to a floor-wide vote? The legislature would still have committees, and the committees would still hear testimony. But, rather than vote a bill up or down, a committee would offer a recommendation on a bill and send it on to the entire body for a vote.

The idea behind the committee vote, presumably, is that a small group of legislators can specialize in a certain area and weed out the unworthy bills. But, in practice, legislative leadership routinely use committees to kill bills they don’t like. Certain committees are informally known as “kill committees”; they are where leadership sends bills so that their reliable colleagues in safe seats can vote them down. Yes, committees hear testimony, but in many or most cases this testimony is entirely irrelevant to the outcome of the bill: Often legislators know how they will vote, and how each of the other committee members will vote, before the hearing even starts.

One purpose of “kill committees” is to shield other members of the leadership’s party from having to take uncomfortable positions on controversial topics. This is good for the party in power, but it is bad for constituents, and it is bad for the democratic process. (I’m not a democrat, but I do see value in citizen oversight of government.)

Of course, if every bill were brought to a floor vote, each legislator would have to vote on many more bills than is currently the case. I regard that as a benefit of the plan, not a bug. It might discourage legislators from introducing so damn many bills.

If this plan were implemented, it might also make sense to change how floor votes are conducted. Here is one possibility: Once a bill made it through committee, legislators could register their vote for a bill whenever they wanted. They could vote yes, no, or abstain. Once every legislator cast a vote, the bill would be declared passed or failed. If, by the end of the session, a legislator had not cast a vote, his vote would be “abstain” by default.

At this point, my proposal is preliminary. I’d want to learn some additional facts before committing to it, including these: Is this done in any other state government? [April 20 Update: Paul Jacob tells me that New Hampshire does this. Rob Natelson tells me North Dakota does, too.] Is there any consequence to the system I’m not foreseeing? Would this require a citizens’ initiative to implement? Offhand, though, putting every bill to a floor vote seems like a great idea.

April 20 Update: This plan is compatible with floor debate for each vote. Then voting would start at the end of the floor debate. Also, I’m not sure how the legislature works now on this issue, but it seems to me that a bill should pass only if a majority plus one vote to pass it, counting all the “abstain” votes. Another variant: Rather than send all bills to the floor, committees could rule, unless a third (plus one) of a body’s members called for a floor vote, in which case a bill would go to the floor even if the committee voted no.

* April 17 Update: Representative Justin Everett emailed me and stated that, contrary to the claims of ColoradoPols, “RMGO wasn’t involved” in the floor action. (RMGO PAC endorsed Everett last year.) He further states “it was a legit way to get the mag ban to the floor.” April 18 Update: RMGO’s Dudley Brown, however, explicitly claims participation in the legislative move.

Image: Gage SkidmoreScott Lemieux, writing for the Week, reaching a similar conclusion to the indictment of Texas governor Rick Perry that I and others have reached: “The basis for the indictment is exceptionally weak, and reflects a disturbing trend towards criminalizing garden-variety political actions. . . . The indictment . . . is irresponsible and nakedly political.” Lemieux observes the obvious fact that part of a governor’s legitimate powers is to veto legislation.

As Rani Molla reports for the Wall Street Journal, “Nearly 1 in 6 jobs in the U.S. are working for the government, more than any single private industry.” Put another way, every government employee is supported by only five people working in the private economy. In California, nearly 2.3 million people work for government—more than the entire populations of over a dozen states. In Colorado, the figure is 383,646. The number of government workers per 1,000 people ranges from 52 in Nevada to 114 in Wyoming.

What’s the trend? The National Bureau of Economic Research reports, “In 1900, one out of 24 workers was on a government payroll, in 1920, one out of 15, and in 1940, one out of 11. The [1949] ratio . . . is one out of 8 or 9.”

Over the last dozen decades or so, Americans fundamentally rethought their relationship with government. I suggest we should fundamentally revisit that relationship again.

August 7 Update: As Rani Molla points out in a follow-up for the Journal, “the percentage of government jobs out of all nonfarm jobs has actually dropped significantly from its peak in 1975 of 20%.”

An employee of the Federal Communications Commission watched a day’s worth of porn every week “out of boredom,” reports Bonnie Kristian for the Week. Meanwhile, “paralegals at the U.S. Patent and Trademark office were paid salaries as high as $80,000 per year, with $3,500 annual bonuses, while spending their days watching TV and doing the dishes at home, with the full knowledge of their supervisors,” Kristian reports. See the reports by the Washington Times and the Washington Post for details. Meanwhile, Watchdog Wiredings Colorado Senators Mark Udall and Michael Bennet for requesting new field offices for the patent office, a move that apparently would allow even more bureaucrats can screw off at taxpayers’ expense. (Hat tip to Complete Colorado.) So long as the FCC exists, it’s probably better that their bureaucrats are wasting time rather than harassing Americans. Offhand I can think of no legitimate reason for the FCC to exist. But doesn’t the patent office have important work to do, protecting people’s intellectual property?

Today Colorado Senator Mark Udall “demanded the resignation of CIA Director John Brennan in response to a new watchdog report that concluded that CIA officers improperly accessed computer files and records used by the Senate Intelligence Committee,” the Denver Postreports (hat tip to Complete Colorado). See also CNN’s report. This might be the only issue on which I’ve agreed with Udall lately, but it’s an important one. A federal agency spying on Congress? Outrageous. My main remaining question is why the agents in question are not now sitting in a prison cell, or at least awaiting their criminal trial.

“The House on Wednesday approved a highly contentious lawsuit against President Obama over his alleged abuse of executive power,” Fox reports. Colorado Congressman Doug Lamborn said, “”The people’s representatives will not turn a blind eye to the lawlessness of this president. We will do whatever it takes to hold him and future occupants of the Oval Office accountable.” It’s unclear to me whether the move is purely political, or if the suit might actually go somewhere legally.

Are political actors (politicians, voters, and bureaucrats) motivated by “self interest” or “public interest?” That is the central question as it is posed in the academic debate over the Public Choice school of economics. However, it is the wrong question.

Public Choice economists and their critics agree that, at least sometimes, political actors pursue financial gain and power at the expense of others, and obviously that is true. To take a few examples, recall the Youtube video in which a woman recites her reasons for supporting Barack Obama: “I won’t have to work [to] put gas in my car, I won’t have to work [to] pay my mortgage.” Does anyone doubt that political actions over the last few years to expand food stamps, expand unemployment benefits, increase subsidies for students loans, bail out auto unions, subsidize solar and wind companies, and expand Medicare coverage were calculated to gain political support? The typical member of congress today sees it as his primary responsibility to bring home the pork to (select voters within) his district.

The problem lies in describing the issue as “self interest” versus “public interest.” Before addressing that issue, though, let us first look in more detail at the debate surrounding Public Choice.

In his book Government Failure, Gordon Tullock (one of the founders of Public Choice) describes what he sees as the problem with the traditional view of politics, as well as his alternative:

Throughout the 19th and well into the 20th century, economists assumed that individuals are primarily concerned with their own interest and worked out the consequences of that assumption. In contrast, during this same period political science largely assumed that political actors are mainly concerned with the public interest. . . .

Economists changed this bifurcated view of human behavior by developing the theory of public choice, which amounts, in essence, to transplanting the general analytical framework of economics into political science. The statement that the voter in the voting booth is the same person as the customer in the supermarket does not seem radical, but it is nevertheless a very dramatic change from the political science literature. (pp. 4–5)

While Tullock grants that political actors do not necessarily act in a “self interested” way (as he uses the term), he thinks they ordinarily do:

Of course, empirical confirmation of any theoretical proposition is more important than analytical elegance. When considering the behavior of any individual politician, most people realize that the politician behaves in a self-interested way; similarly, when considering the factors that affect votes, most people assume that personal gain is certainly an aspect. (p. 6)

The critics of Public Choice, on the other hand, argue that political actors tend to act in the “public interest.” Jeffrey Friedman, editor of Critical Review, describes the debate in the Winter-Spring 1995 issue (Vol. 9, Nos. 1–2) of his journal:

[A] distinction should be drawn between two terms that are often used imprecisely or synonymously: rational choice and public choice. One understanding of the difference holds that public choice theory applies economic analysis to political (i.e., “public”) decision making, while rational choice theory goes even farther, applying economics to other nonmarket realms, such as family life. This distinction, to adopt John Ferejohn’s [citation omitted] terminology, attributes to both public and rational choice theory a “thin” understanding of the economists’ rationality postulate: individuals are assumed to have only the inclination to satisfy their stable and ordered preferences, whether these are selfish or not. But outside the academy, public choice theory has a decidedly “thick” connotation, referring to the alleged propensity of political actors to pursue their material self-interest. . . .

Like most important ideas . . . public choice theory is liable to polemical oversimplification. The main danger is that the possibility that people are as self-interested in their political as their economic behavior may be treated as the assumption that self-interest is always and everywhere the real fountainhead of politics. . . .

[T]he effort of comparing public choice hypotheses against alternatives frequently falls to non-public choice scholars. One such effort is Leif Lewin’s Self-Interest and Public Interest in Western Democracies, published by Oxford University Press in 1991. Reviewing in detail the empirical literature on a variety of public choice claims—almost all of which was written by non-public choice researchers—Lewin found that in no case does public choice theory withstand scrutiny as a general hypothesis about the ubiquity of self-interest in politics. (pp. 1–3)

Friedman goes on to explain that, according to Lewin’s findings, voters tend to select politicians they deem “likeliest to benefit the economy of their society as a whole,” and bureaucrats too frequently act outside the boundaries of what the Public Choicers predict for them (pp. 3–4).

Notably, a recent issue of Critical Review (Vol. 23, No. 3 from 2011) explores Lewin’s work in more detail, featuring an essay by Lewin himself.

Lewin writes that, today, even many Public Choicers agree “that voters, politicians, and bureaucrats are much more public spirited than public-choice theorists originally maintained” (p. 361). However, Lewin acknowledges the problem of interest groups in politics. He writes, “[I]t is hardly unexpected that people pursue their self-interest when they enroll in interest groups. That is the whole rationale for membership.”

Public Choice economists and their critics, then, agree that sometimes political actors act in their “self interest” and sometimes in the “public interest.” They disagree over how prevalent one is over the other.

The huge problem with this debate is that neither of the sides presented offers a coherent definition of “self interest” or “public interest.”

As the scholars quoted above use the term, “self interest” applies to political practices of taking others’ wealth by force, forcibly blocking or harming competitors, gaining special political favors, and the like. The opposite of “self interest,” goes this line of thinking, is “public interest,” which means acting for the general well-being of society as a whole. Neither of those definitions withstands scrutiny.

Begin with “self interest.” One’s actual, long-term, selfish interests consist substantially in achieving and supporting a government that protects individual rights, not one that forcibly transfers wealth and doles out favors. It is only within a rights-respecting society that an individual is free to act consistently for his own purposes and in accordance with his own, unhindered judgment. If one holds that the “public interest” consists in establishing a rights-protecting government—the only sensible use of the term—then there is no clash between pursuing the “public interest” and pursuing one’s “self interest,” properly conceived.

With the sloppy treatment of “public interest” within the debate over Public Choice theory, however, the “public interest” can be conceived in any number of contradictory ways, ranging from the American Founders’ support for a rights-respecting government to the communists’ support for collectivism and mass slavery. What matters is the content of one’s ideology, and referring to some undefined “public interest” only obfuscates that issue.

History shows that what we have to fear are not primarily the petty politicians who act to advance their narrow interests of wealth and power by abusing their positions, as annoying and destructive as they are. What we should fear are those politicians who sincerely act in the “public interest” conceived apart from individual rights—and who stop at nothing to achieve it.